2017-00211451-CU-MT

William Cheng vs. County of Sacramento

Nature of Proceeding: Motion to Set Aside the 11/16/2018 Minute Order

Filed By: Cheng, Janet

Plaintiffs in pro per William Cheng and Janet Cheng’s (collectively, “Plaintiff”) motion to set aside the November 16, 2018, summary judgment order is DENIED.

The Chengs filed a two-page motion sans persuasive evidence. The legal basis for the motion is unclear. Plaintiffs merely state they were not served with the summary judgment motion documents by the County Defendants [“NONE”]. They also state that the summary judgment contained “UNTRUE, INCORRECT, FRAUDULENT STATEMENTS.” (p. 1 of Motion [emphasis in original]) Putting aside the question as to how the Chengs would know the contents of the summary judgment were untrue, incorrect or fraudulent if they never received the papers, it must be noted Plaintiffs have failed to present any evidence whatsoever indicating they were never served with the summary judgment motion documents, beyond Ms. Cheng’s bald assertion that “Chengs were not served any summary judgment.” (p.1) Mr. Cheng makes no similar averment.

In opposition, County Defendants have provided evidence that Plaintiffs’ were properly served. The Proof of Service for the motion for summary judgment indicates Plaintiffs were served by express mail through Golden State Overnight Delivery Service at their home address of 9123 Linda Rio Drive, Sacramento, California 95826 on August 30, 2018. (Floyd Decl., Exh. A.) Golden State Overnight Delivery Service confirmed delivery of the documents via email on August 31, 2018. (Floyd Decl., Exh. B.) County Defendants have also presented evidence that Plaintiffs were mailed additional copies of the summary judgment motion documents with a cover letter from Keith W. Floyd on October 10, 2018, following a telephone conversation with Janet Cheng, in which she claimed to have not received any of the summary judgment motion documents. (Floyd Decl. ¶¶ 5-6, Exh. C.)

Although the motion cites to no legal basis for relief, Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . .

. from a judgment, dismissal, order or other proceeding. . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

As the Court perceives the argument in the light most liberal to the Chengs, relief is sought solely on the discretionary relief provisions of CCP section 473(b). As well it might be, since mandatory relief is unavailable to plaintiff; a summary judgment is neither a default, nor a default judgment, nor a dismissal. (See, e.g. English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418.) The trial court has discretion under section 473(b) based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; accord, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256 [“‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.'”].) (Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4th 918, 928.)

Plaintiff has failed to provide sufficient evidence constituting mistake, inadvertence, surprise, or excusable neglect warranting relief under § 473(b). Ample evidence of service of the motion is shown by the County defendants. Based on the foregoing, the motion to set aside is DENIED.

Further, to the extent Plaintiffs are seeking reconsideration based on a claim that they were purportedly informed by former Sacramento County Assessor that they could proceed with filing a lawsuit against the County regarding their underlying allegation of improper utility billings that were added to their property tax bills, the motion is DENIED.

There are strict requirements for a motion for reconsideration. Foremost is that the motion for reconsideration must be heard by the same judge who issued the order sought to be reconsidered (Code Civ. Proc. §1008(a)). The motion for reconsideration must be filed within 10 days of the order denying the motion. (CCP § 1008(b)). The motion for reconsideration must also be supported by “new or different facts, circumstances or law.” (Id.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The moving party must “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(a)). Plaintiffs have failed to provide an accompanying affidavit to their motion. (CCP §1008 (a).Further, in the scant papers filed, Plaintiffs have failed to set forth any new or different facts, circumstances, or law and a valid reason for not offering it earlier.

Plaintiffs’ motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.